On Friday night, the Court granted an emergency stay in Trump v. Orr, allowing the President's passport policy to go into effect. To the Court's credit, there was a mini merits analysis:
Displaying passport holders' sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government's choice to display biological sex "lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group." Trump v. Hawaii, 585 U. S. 667, 705 (2018) (internal quotation marks omitted).
The omission of internal quotation marks here is significant. That quotation came from Justice Brennan's opinion in Department of Agriculture v. Moreno, a decision that Justice Kennedy cited in Romer, Lawrence, and Windsor. That one passage was the fountainhead of so many flawed precedents. The full passage from Trump v. Hawaii is here:
